FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 19692/02 by Aleksandr SELIVERSTOV against Russia

The European Court of Human Rights ( First Section), sitting on 30 June 2005 as a Chamber composed of:

Mr C.L. Rozakis , President , Mrs S. Botoucharova , Mr A. Kovler , Mrs E. Steiner , Mr K. Hajiyev , Mr D. Spielmann , Mr S.E. Jebens, judges , and Mr S. Quesada , Deputy Section Registrar ,

Having regard to the above application lodged on 27 November 2000 ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Aleksandr Vladimirovich Seliverstov, is a Russian national who was born in 1957 and lives in Sarapul in the Udmurt iya Republic . He is represented before the Court by Mr S. Galikhanov, a lawyer practising in Izhevsk in the Udmurt iya Republic . The respondent Government are represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.

A. The circumstances of the case

The facts of the case, as submitted by the parties , may be summarised as follows.

On 23 April 2001 the Supreme Court of the Udmurt iya Republic delivered a judgment in the criminal case against the applicant and his co-defendants, Mr T. and Mr Z.

The court established that in February-March 2000 the applicant, the then director of the Sarapul Town Property Management Committee, had uncovered certain defects in the privatisation documents of a local brewery which, in the applicant ' s assessment, might have rendered the privatisation void . The applicant conspired with T. and Z. to approach the director of the brewery with a request to pay 350,000 Russian roubles (RUR) in exchange for the applicant ' s consent to surreptitiously make amendments to the brewery ' s privatisation documents. The director had agreed to RUR 200,000. On the day of payment the applicant prepared an amended privatisation plan , signed it in his office and affixed the seal of the Property Management Committee. Z. and T. delivered the privatisation plan to the brewery director and received the stipulated amount. On leaving the director ' s office they were apprehended by the police.

The court found the applicant guilty of soliciting and attempting to receive, through an intermediary, a large amount of money in order to perform acts in the interests of the bribe - giver that were with in the applicant ' s official competence. The court attributed a legal characterisation to this offence under Article 290 § 4 (v) and (gh) of the Criminal Code (“ Bribery ”) in conjunction with Article 30 § 3 (“Preparation of a criminal offence and an attempted criminal offence”). The applicant was sentenced to three years and six months ' imprisonment in a high- security colony.

The applicant appealed against the conviction pleading his innocence.

On 17 October 2001 the Criminal Division of the Supreme Court of the Russian Federation held an appeal hearing where the applicant ' s lawyer and a public prosecutor were present. The applicant was not in attendance.

In his oral submissions the prosecutor asked the court to characterise the applicant ' s acts as attempted large-scale fraud committed by an organised group (Article 159 § 3 (b) of the Criminal Code in conjunction with Article 30 § 3), without reducing the sentence. Pursuant to Article 338 of the RSFSR Code of Criminal Procedure, the court then gave floor to the applicant ' s lawyer for “additional explanations”. The lawyer contended that the granting of the prosecutor ' s request would violate the applicant ' s right to prepare his defence because neither the applicant nor the lawyer himself had been informed in advance of the nature and grounds of the new charge and had not had adequate time to develop their position. The lawyer invoked, in particular , Article 6 § 3 (a) and (b) and Article 13 of the Convention. The court withdrew for deliberation s and pronounced as follows:

“Having correctly established the facts of the case, the [ trial ] court, however, groundlessly characterised [the applicant ' s] acts as an attempt to solicit a bribe in conspiracy with T. and Z . As the court acknowledged in the judgment, the brewery privatisation documents had contained ' defects ' that had been too insignificant to entail annulment of the privatisation, and [the applicant], as the court established, had been perfectly aware of it. By building the deception scheme designed to get hold of a large amount of money on the defects in the documents , [the applicant], acting in collusion with T. and Z. , attempted to steal another person ' s property o n a large scale using his office. These acts of [the applicant] are to be characterised under Articles 30, 159 § 3 (b) of the Criminal Code ...

Notwithstanding the change in the legal characterisation of the defendants ' acts, it must be recognised that the sentence imposed by the [ trial ] court corresponds to [ the gravity of] the offence and the information on their personalities.”

B. Relevant domestic law

Criminal Code of the Russian Federation

An official who – personally or through an intermediary – receives a bribe in the form of money, shares or other property or benefits for acts (omissions) in the interests of the bribe -giver , provided that such acts are within the professional competence of the official or the official can facilitate the performance of such acts by virtue of his position, shall be criminally liable (Article 290 § 1). The same acts if committed o n a large scale (Article 290 § 4 (gh)) or involving solicitation of a bribe (Article 290 § 4 (v)) shall be punishable with seven to twelve years ' imprisonment, accompanied or not with a confiscation order.

Article 159 § 1 provides that fraud, that is theft of others ' property or acquisition of rights to others ' property by way of dece ption or abuse of confidence, is a criminal offence. Article 159 § 3 (b) specifies that a fraud committed o n a large scale shall be punishable with a fine of up to 1000 minimum wages or two to six years ' imprisonment.

The RSFSR Code of Criminal Procedure (in force at the material time)

Article 254 required that the court examined the case within the scope of the charge against the defendant ( s ) . The charge could be amended by the court, provided that such an amendment did not aggravate the situation of the defendant or violate his right to defend himself. If the amendment entailed a violation of the defence rights, the court was to remit the case for an additional investigation. It was prohibited to prefer a more serious charge or a charge based on substantially different factual circumstances. The court could continue the trial if the amendment only concerned abandonment of certain counts or aggravating circumstances.

Article 338 described the procedure for examination of cases before the appeal court. A judge rapporteur opened the hearing and gave a summary of the facts of the case and arguments of the appeals. The defendant was the first to give explanations, followed by the prosecutor ' s oral submissions. Thereafter the floor was given again to the defendant for additional observations and the court withdrew for deliberations and delivery of the judgment .

COMPLAINT S

The applicant complain s under Article 6 § 1 of the Convention about incorrect assessment of evidence by the domestic courts . He further complains under Article 6 § 3 (a), (b) and (c) and Article 13 of the Convention about inefficient assistance by his lawyer and the legal recharacterisation of the facts by the appeal court. The applicant submits that the appeal court failed in its duty to ground the new charge on a sufficient factual basis and that he was not informed in advance of the new charge advanced by the prosecution.

THE LAW

The applicant complained about an incorrect assessment of facts and procedural irregularities in the criminal proceedings against him. The Court will examine his complaints under Article 6 of the Convention which reads, in the relevant parts, as follows:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... by a ... tribunal ...

...

3. Everyone charged with a criminal offence has the following minimum rights:

(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

(b) to have adequate time and facilities for the preparation of his defence;

(c) to defend himself in person or through legal assistance of his own choosing ... ”

Submissions by the parties

The Government submit that the attribution of a different legal characterisation to the applicant ' s acts by the Supreme Court was compatible with Article 254 of the then Code of Criminal Procedure as the factual basis of the charge had not been substantially modified and a more lenient provision of the Criminal Code had been applied. The recharacterisation should have been sufficiently foreseeable for the applicant who was represented by a highly qualified lawyer.

The applicant submits firstly that the judgment of the Supreme Court did not refer to Article 254 or any other provision of the Code of Criminal Procedure governing recharacterisation of criminal offences. Nor did it give any reasons as to why it had decided to accede to the prosecution ' s request and attribute a different characterisation in law which, moreover, was based on a substantially different factual basis. He considers that, confronted with the prosecution ' s decision not to maintain the charge of bribe -taking , the court should have quashed the trial court ' s judgment and discontinue d the criminal proceedings.

The Court considers, in the light of the parties ' submissions, that the application raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously

Declares the application admissible, without prejudging the merits of the case.

Santiago Quesada Christos Rozakis              Deputy Registrar President